Government Shutdown Furloughs Delay Sequestration Furlough Appeals

The agency that handles adverse personnel actions was closed for 16 days.

Thousands of appeals from federal employees furloughed because of sequestration sat in the pipeline during the 16-day government shutdown when the small federal agency working on them was forced to close shop.

In other words, more furloughs delayed furlough-related work.

The Merit Systems Protection Board, which has about 200 employees in Washington and eight regional offices nationwide, furloughed most of its workforce on Oct. 1, save for a few excepted employees and the three board members who are political appointees. It was not the ideal time for forced leave: The agency is in the middle of handling an unprecedented wave of appeals filed by federal employees furloughed during the spring and summer because of mandatory across-the-board budget cuts. Employees, nearly all Defense Department workers, filed roughly 32,000 furlough challenges during fiscal 2013. By contrast, the agency’s regional offices in fiscal 2012 received about 6,000 total appeals, which include furlough- and non-furlough-related issues.

“Subtract 16 days, and that’s where we are,” said James Eisenmann, MSPB executive director, referring to the length of the government shutdown and the number of furlough appeals in the queue. Among its other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended for more than 14 days, furloughed for 30 days or less, demoted or had their pay cut. Agencies must give furloughed employees 30 days’ advance notice; once on furlough, employees have 30 days to file an appeal with MSPB. The average appeal processing time in fiscal 2012 was 93 days for an initial decision from the agency. The losing party can then file a petition of review with the agency’s three-member board in Washington. It took an average of 245 days in fiscal 2012 to process those petitions, which are rare.

The quasi-judicial agency had decided 40 fiscal 2013 furlough appeals as of Sept. 10, and posted two other decisions on its website on Sept. 18 prior to the shutdown – a fraction of its caseload. Of those decisions, 41 ruled in favor of the agencies; MSPB sent one case back to the regional office affirming a claimant’s argument seeking more documents from the agency for her furlough appeal. The decisions involved non-Defense agencies, as MSPB is working on consolidating the thousands of Defense appeals where applicable. Ninety-nine percent of the 32,000 furlough appeals MSPB has received this fiscal year were from Defense workers forced to take unpaid leave because of sequestration. MSPB can consolidate appeals that share similar characteristics, such as the type of issues raised, or location of the employee, to expedite processing, as long as it doesn’t adversely affect the parties involved.

Defense civilians were forced to take six days of unpaid leave this fiscal year because of sequestration. During the government shutdown, about 90 percent of furloughed Defense civilians were called back to work on Oct. 7.

MSPB has posted on its website what’s known as the administrative file for the Air Force, Army and Navy departments. The agency files contain general documents relevant to all the furlough appeals, for example memorandums from Defense and Office of Management and Budget officials and furlough guidance given to employees. The files do not contain employees’ personal information. The agency administrative files are part of MSPB’s effort to consolidate similar appeals to expedite them.

MSPB judges decide each case on its individual facts, but so far it seems that winning back pay could be a long shot for the thousands of employees who have filed furlough appeals. Typically, an agency must demonstrate that the adverse actions taken -- in these cases, furloughs -- were reasonable under the circumstances and promoted “efficiency of service.” That’s where their colleagues furloughed due to lapses of appropriations have an edge: Congress always has approved back pay for furloughed employees during government shutdowns, including the most recent one.